Gray v. Gray
| Citation | 121 Miss. 541,83 So. 726 |
| Decision Date | 08 March 1920 |
| Docket Number | 20952 |
| Court | United States State Supreme Court of Mississippi |
| Parties | GRAY ET UX v. GRAY |
March 1920
APPEAL from the chancery court of Madison county, HON. LAMAR F EASTERLING, Chancellor.
1. HABEAS CORPUS. After judgment awarding custody of infant to parents, courts cannot require them to permit child to visit grandparents.
After awarding the custody of a child to the party entitled thereto, the judge in a writ of habeas corpus trial is without power to direct the manner in which such party shall exercise His lawful authority over such child or to direct that he shall thereafter surrender, though temporarily, the custody thereof to another party.
2 SAME.
The judge does not merely, because he presided in a habeas corpus trial in which the right to the custody of a person was determined, thereby acquire perpetual jurisdiction over the custody and welfare of such person, when the order entered by him either freeing the person from restraint or awarding his custody to the party entitled thereto has been executed, the Judge's jurisdiction in the matter is at an end unless and until it is again invoked by the issuance of another writ of habeas corpus.
Hon LAMAR F. EASTERLING, Chancellor.
Habeas Corpus proceeding by Frank Gray and wife against Dick Gray. From an order entered after decree awarding custody of child to petitioners which required petitioners to permit the child to visit defendant, petitioners appeal.
Habeas Corpus proceeding by Frank Gray and wife against Dick Gray. From an order entered after decree awarding custody of child to petitioners which required petitioners to permit the child to visit defendant, petitioners appeal."
The facts are fully stated in the opinion of the court.
Order reversed, and cause dismissed.
E. E. Harrell, for appellant.
We think the chancellor exceeded his authority by entering in vacation, decrees materially changing his former decree, especially in view of the fact that no notice was given the parties, and no proof was offered, we are not unmindful of the fact that the chancellor has power to make temporary decrees, but the original decree in this case was not of that nature, but final, with all the incidents that attach to such or any other decree, and was beyond the power of the chancery court, or any other court to amend, vacate, annul or modify in any respect except as provided by law. See Ex Parte Stanfield, 98 Miss. 214.
When the original decree was signed and entered on the court minutes, at the regular may term, it then became a final decree, beyond the power of the chancellor to recall or modify, in the manner authorized by section 1016 of the Code of 1906, on the ground of fraud.
The judgment herein complained of are not sought to be changed in either of the ways indicated. The decree rendered June 28th and that of July 12th, were rendered in vacation without notice to the interested parties and without proof of any facts. The effect of these decrees is to reverse or annul the former or final decree. We think this was error. See Anderson v. McInnis, 99 Miss. 823.
The original decree recites: "The court doth find that the said parents are fit and capable persons, willing and able to raise and maintain their said child, and under the law should have the care and custody of their said son."
The decrees herein complained of destroy the original finding, by depriving the parents of the custody of their child. A parent's right to the custody of his child, if a fit and capable person, are so well settled, we need not cite authorities to this court.
Again, the last decrees alternate the custody between parents and grandparents for a period of thirty days. This practice is condemned in the case of Turner v. Turner, 93 Miss., where the court said through Chief Justice WHITFIELD: "No child of that age should have his custody alternatively shifted, especially where the mother is living and a competent person to care for the child."
In view of facts presented by this record, and the many decisions of our courts, we respectfully submit that the two last decisions of the chancellor should be set aside and the original decree re-instated.
T. S. Wart, for appellee.
No brief of record for appellee.
IN BANC
On the 29th day of November, 1918, Frank and Mary Gray, who are husband and wife, filed a petition with the Hon. Lamar Easterling, chancellor of the Fifth chancery district alleging that their lawful...
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